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Creating the Sustainable Workplace:
Reducing Your Risk of Liability in 2011
2010 brought changes to the legal landscape for employers, and there are potentially significant developments on the horizon.  Below are the most meaningful developments for your workplace, and some  New Year’s Resolutions for a workplace with decreased risk of liability and increased potential for productivity.
Changes You Can Make Today To Reduce Your Risk: What Did We Learn From The Courts in 2010?
Steps You Should Take Before Reviewing Employee Messages.
We recommend that employers review their computer usage policies to ensure that the policy alerts employees that they have no right to privacy in their cell phone, PDA, pager or and computer usage (e-mail, voice mail, internet usage) where they are utilizing Company-provided or company-reinbursed equipment, and to learn more, click here
Do You Need To Pay Travel Time To An Employee Using A Company Car?  When Do You Compensate Employees Who Work “Off The Clock”? 
Requiring that an employee use a Company car for commuting to and from the Company’s worksite will not automatically convert unpaid commute time into compensable travel time.  However, to learn more, click here.
When Can You Be Sued For Wages As An “Employer”? 
To employ someone in California means: (a) to exercise control over wages, hours or working conditions (in other words to have “actual control” over wages, hours or working conditions); (b) to suffer or permit to work (meaning the employer has the power to stop or prevent the employee from working); or to learn more, click here
Do You Need to Provide Your Employees With Seating?  What Are the Risks of Not Doing So?
Do you have employees who stand a lot as part of their job duties (for example, a greeter, a cashier or other employee whose position requires that they stand a great deal)?  Where the nature of an individual’s work reasonably permits the use of a seat, employers are required by the California Labor Code to provide employees with “suitable seating.”  Failure to do so could expose the employer to additional penalties under the Private Attorney General Act.  (Bright v. 99¢ Only Stores).    
Is There A Point In Time At Which An Interactive Dialogue Is Not Required Before You May Terminate A Disabled Employee?
You may be surprised to learn that where an employer advises the employee that it believes the employee is not able to perform the essential functions of the position, it may be the employee’s obligation to initiate an interactive dialogue in response.  But exercise caution: To learn more, click here
Can You Be Sued By An Employee Who Is "Associated With" a Person Who Complains of Harassment? 
Yes.  The federal discrimination laws were held to prohibit any employer action that "well might have dissuaded a reasonable worker from making or supporting a [discrimination] charge".  For example, in Thompson v. N. Am. Stainless LP the fiance of a complaining employee was fired, and brought suit.  The court held that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired. 
Can You Be Sued By An Employee Who Merely Observes Discrimination?
According to a recent case, the answer is no.  Only an employee who is “associated with” or “advocates on behalf of” a member of a protected category is protected.  (Thompson v. City of Monrovia).  Employers may want to review their harassment policies to ensure that the Company has created sufficient avenues for employees to raise complaints of harassment or discrimination and also to confirm that the Company has established clear and effective policies and practices for avoiding and responding to complaints of harassment or discrimination. 
How Long Does An Employee Have To Sue For Waiting Time Penalties, Where Wages Are Paid But Are Late?
Double check your policies and practices: in California, wages (with some exceptions) must be paid at least twice during each calendar month on the days designated in advance as regular paydays.  Overtime wages must be paid no later than the payday following the payroll period in which the overtime wages were earned.  To learn more, click here.  
What Changes Do New Laws Impose on Your Workplace?
You May Be Required To Provide Bone Marrow Or Organ Donation Leaves Of Absence.
Effective January 1, 2011, all California employers with 15 or more employees must provide a paid leave of absence of up to 30 days per year to employees for the purpose of donating an organ to another person. Employers also must provide up to 5 days paid leave for bone marrow donation.  Unless otherwise provided for in a collective bargaining agreement, the employer may require the employee to use up to 2 weeks of accrued paid leave for time off related to organ donation and up to 5 days of accrued paid leave for time off related to bone marrow donation.  The employer must maintain the employee’s benefits during the leave.  The employer may require written verification of the donation and its medical necessity.  Employees should expand their leave of absence policies to provide notice of these new requirements and should create processes for offering and tracking such leaves
What Do You Need To Know About The Genetic Information Nondiscrimination Act?
Employers are prohibited by GINA from acquiring, requesting, requiring, or purchasing genetic information, and are limited from disclosing genetic information.   GINA also prohibits employers from making employment decisions on the basis of genetic information and family history and prohibits employers, except in limited circumstances, from acquiring genetic information and family medical information about applicants, employees, and former employees.  To learn more, click here.
Federal Law Now Requires Lactation Breaks.
Effective March 23, 2010, employers with 50 or more employees are now required to provide unpaid “reasonable break time” and facilities for non-exempt employees for the purpose of expressing breast milk “each time” an employee needs to do so, for up to one year following a child’s birth.  To learn more, click here 
Additional Notice Is Required Employee Prior To Conducting A Background Search.
Effective January 1, 2012, employers who request an investigative consumer report (generally, a background search) from an agency for employment purposes in California must provide the applicant with the internet website address or telephone number for the investigative consumer reporting agency where the applicant or employee can find information about the agency's privacy practices.  The consumer reporting agency itself must post its privacy practices on its primary website. 
Do You Qualify For A New Limited Exemption From The Meal Break Requirement?
Effective January 1, 2011, construction workers, commercial drivers, certain security officers and employees of electrical and gas corporations or local publicly owned electric utilities are exempt from California's meal break requirements if those employees are covered by a valid collective bargaining agreement containing specified terms, including meal period provisions.
New Years' Resolutions: Decrease Your Risk of Liability and Increase Productivity Potential in 2011
We know that innocent mistakes often are the cause of unwanted and potentially expensive litigation.  Consider a few Resolutions to protect your Company and enhance your workplace in this New Year. 
Develop Sustainable Hiring and On-Boarding Practices. 
Do your new hire documents protect the Company from liability and help the Company hire the right person the first time? 
Do the Company’s job descriptions establish accurate and clear performance expectations?
Review Your Wage and Hour Practices.
Is the Company paying employees all of the compensation to which they are legally entitled?
Does the Company documentation adequately inform its employees regarding compensation and comply with the law?
Spend Some Time With Your Employee Handbook.
Is the Company handbook a clear and accurate reflection of the Company’s actual expectations for its employees?
Does the Company handbook accurately reflect the law, and is it affording the Company all the protection offered by the law?
Educate Your Managers.
Remember, a company acts or fails to act when its managers act or fail to act. 
Do your managers have the tools necessary to protect the Company and to encourage the best performance of their staff?  
Do your managers have the skills needed to have difficult and critical conversations on performance? 
If You Have Questions . . .
If we can be of any assistance in implementing the above or other New Years’ Resolutions, give us a call or e-mail
us.  It is our pleasure to partner with you in creating your sustainable workplace. 

Schor Vogelzang & Chung LLP

Partnering to create your great workplace!

2170 Fourth Avenue, San Diego, CA 92101
P: 619.906.2400 F: 619.906.2401


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